Tustin officer gave man less than a second to raise his hands before fatally shooting him, court says in ruling

A Southern California police officer gave a man less than a second to raise his hands before opening fire and killing him, a federal appeals court noted Friday in rejecting the officer’s request to dismiss a wrongful death lawsuit against him.

The U.S. 9th Circuit Court of Appeals in San Francisco said Tustin Police Officer Osvaldo Villarreal couldn’t reasonably have feared for his safety when he shot 31-year-old Benny Herrera after responding to a domestic dispute call in December 2011.

That determination ran counter to the Orange County district attorney’s office, which said in 2013 that the shooting was reasonable and justified because Villarreal fired after Herrera ignored orders to show his hands.

A video captured by a police dashboard camera shows otherwise, according to the 9th Circuit judges who cited the footage.

“Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him,” the court wrote. “Just as Herrera’s hand came out of his pocket, Villarreal fired two shots in rapid succession … The command and the shots were almost simultaneous.”

The video has not been made public and is under a court seal.

The seven-page review of the case by Orange County prosecutors does not mention the existence of a video and appears to rely heavily on Villarreal’s own statements.

Sonia Balleste, the senior deputy district attorney who wrote the review, said Friday that she didn’t immediately recall the case or why the review didn’t mention the video but that she was sure she “looked at all the evidence that was available.”

“As a general practice it wasn’t my custom and habit to write down everything I looked at,” she said, adding that her office has since changed how such reviews are written to include more information.

Attorneys for Herrera’s parents and four children, all under 7 years old, filed a civil lawsuit against Villarreal and Tustin in 2012. Friday’s ruling allows that lawsuit to move forward to trial and upholds a lower court’s order declining to toss it out.

Tustin City Atty. David Kendig, speaking on behalf of Villarreal and the city, noted that the 9th Circuit was looking at the case in the light most favorable to Herrera’s family.

He said the city provided the district attorney’s office with video of the shooting but didn’t know why it didn’t make it into their review of the case.

Dale Galipo, who represents Herrera’s family, criticized the district attorney’s review as a “farce.”

“Are they not getting all the information from the agency? Did they not get the video, or are they just ignoring facts that support that the shooting was excessive?” Galipo said. “The whole process is flawed. It really is a joke.”

A 20-year-old man is suing the city, Tustin police and one of its veteran officers, alleging that the officer “physically assaulted and tackled him” for no reason, leaving him with injuries to his face and an arrest record.

In the lawsuit, filed July 31 in Orange County Superior Court, Jose Francisco Franco of Tustin alleges assault and battery, negligence and false arrest. He also alleges three civil rights violations including unlawful seizure of person, excessive force and unconstitutional city policies.

“He had a clear record. He’s a nice, clean-cut kid,” said John Cogorno, an attorney representing Franco in the case. “The officer overreacted under the circumstances. And as a result, the kid was seriously damaged.”

The city, police department and Officer Rene Barraza, who was named in the lawsuit, did not comment on the case. The city hadn’t been served with the suit as of Tuesday, city attorney David Kendig said.

Barraza has been with the Tustin Police Department since 2007, according to an announcement when he won officer of the month in 2013. He’s currently a K-9 officer, and he and his dog, Bravo, are a common sight at community events like Tuesday’s National Night Out.

The incident happened around 11 p.m. June 2, 2014. Franco – who was 19 at the time – was by himself, sitting on the steps outside a medical building on Newport Avenue, listening to music on his cellphone, Cogorno said.

“He just wanted to get out of the house,” Cogorno said.

When Franco saw a police officer drive by, Cogorno said he got up and started walking. It wasn’t because he’d done anything wrong, Cogorno said. It was simply the knee-jerk reaction many people have to avoid the police, he said.

Officer Barraza then approached Franco from behind and tackled him, causing Franco to fall face-first into the sidewalk, the lawsuit alleges.

Franco’s two upper front teeth went through his lip, Cogorno said. His tooth was chipped, and he suffered bruising and swelling to the rest of his face.

Barraza arrested Franco at the scene, the lawsuit states. Paramedics took Franco to a hospital in Santa Ana to treat his injuries, then he was booked into county jail for a misdemeanor charge of willfully delaying, resisting or obstructing an officer.

Franco was ordered to appear in court July 1, 2014, according to the lawsuit. He did, and no charges were filed against him.

He filed a claim with the city in November. The City Council denied the claim in February, so Franco filed the lawsuit.

Franco is suing to cover his medical bills and loss of wages, plus he’s seeking compensation for mental distress and punitive damages.

He was working for a car wash at the time of the incident and had to take 30 days off work to recover from his injuries, Cogorno said. He lost his job during that time, Cogorno said, but found another and is employed now.

Franco’s teeth are still a bit loose and he has a scar on his lip, Cogorno said. But the most upsetting part, Cogorno said, is that Franco now has an arrest record that can potentially impact his chance at jobs, loans or housing.